from the an-homage-is-infringing? dept

This is bizarre. Shocklee points us to the news that celebrity photographer David LaChapelle is suing singer Rihanna, claiming that the video of her latest song, "S&M" is "directly derived" from his photographs. I haven't seen the full lawsuit filing (anyone got it?), so I don't know all of the details of what's being alleged, but the derivative claims sound like a standard copyright claim. A few news sources have compared the video and the photos, and while they're similar and the photos certainly may have inspired the scenes in the video, they certainly don't look like direct copies in any way. Here are a few examples, video on the left, photos on the right.

I'm having trouble understanding how any of these would be considered copyright infringing. Sure, they may be homages to the original photos, but that shouldn't be infringing. Remember, copyright is only supposed to cover the specific expression, and not the idea. In all of these examples, it looks like the specific expression is quite different, even if the idea is similar. Why not just be happy with the flattery and move on? Of course, some will say that the press attention from the lawsuit is probably the reason why, and perhaps that's true, even if it's an incredibly cynical view on the world.

Re:

Is someone feeling inadequat?

Looks like David LaChapelle is feeling a little fame envy. The stuff in the photographs looks like the standard S&M fare. No reason why he should feel miffed. Does he expect me to pay him royalties every time I spank my girlfriend?

I can sympathize with the photog a bit in this case. My buddy is a vis artist (fine art) and his ideas keep showing up in movies. He knows htat it is not really actionable but I can see why it bugs him.

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Wouldn't this be good for your friend? He can now pitch his work to studios by saying "Look. These were my ideas. I'm happy you used them and this proves my ideas are good. Let's see what I can create specifically for you instead of someone else recycling my old stuff."

The program above collect millions of picture from Flickr to reconstruct Rome in one day in 3D, if we asked the program to come up with the images that have close resemblance I'm sure that there will not be a hundred, but thousands of images related to any one of those pictures.

Maybe that is the way to solve derivative works now ask a computer system to identify all images that are similar and sue everyone LoL

Or maybe we realize that we are not that original and shouldn't be going legal for those things.

double standard?

Ironically, the 'original' (i.e. Warhol's painting) is - itself - derived from yet another photograph. So by the time LaChapelle took a photo that was composed and processed to look like a painting that was itself an image of an image, the whole "derivative work" thing had taken on several layers. Indeed, they are both derivative works ABOUT derivative works.

In fairness to LaChapelle, he explicitly credits his source in Warhol. But did he get advance permission from the Warhol estate and pay whatever they would likely charge for this? I have no idea, but if LaChapelle is going to get into a fight like the one he's in, now would be a great time for him to say which side of this issues he's been on in the past.

Does anyone else know if his "Amanda Lepore as Andy Warhol's Marilyn (Red)" was done with the permission and payment? Or did he just do it because he wanted to, offering nothing more that the credit that *he* felt was due, and nothing more?

UPDATED this page for ya, Mike, with a bit of actuality:

We've been covering the lawsuit filed by photographer Dave LaChapelle because the video for Rihanna's song S&M appeared to mimic some of the ideas found in some of his photographs:

Of course, we thought that there was an idea/expression dichotomy in copyright law that says you can't copyright the idea -- just the expression. So we thought that a judge would make quick work of the case. Instead, the judge confirmed what we already suspected: the idea/expression dichotomy is a total and complete myth, and the case could move forward. This was reasonably troubling for lots of folks -- though certainly for Rihanna.

So it came as little surprise that Rihanna has "settled" the lawsuit with LaChapelle, meaning that she gave him a bunch of cash to go away. The lesson in all of this? Homage is expensive. You're best off not bothering.